Well. . . last week, we said that this was a. . . loony, "off the reservation" sort of request -- for additional post-argument briefs, by the en banc Fifth Circuit. And that. . . it indeed, is.
So tonight, the US attorneys have obliged, and made plain this afternoon. . . just how loony the Fifth has become. Do read all ten pages, but here is a bit:
. . .[E]even if the federal courts were sometimes required to accept a State’s determination regarding the existence of an invasion, the district court could nonetheless adjudicate the United States’ claim in this case without needing to address any issue that is plausibly reserved to the State’s sole discretion. Finally, “[i]n a hypothetical case, if an action [were] brought against the President. . . for exercising the constitutional war power,” the President would have justiciability defenses that are not available to a Governor in an action, like this one, brought by the United States. . . .
[E]very court to have considered whether a substantial influx of irregular migration qualifies as an invasion for constitutional purposes [has decided against such nonsense]. Those courts considered the issue in suits brought by States or officials of political subdivisions contending that the federal government’s alleged failure to adequately curtail unlawful migration violated the United States’ obligation under Article IV of the Constitution to “protect” the States “against Invasion.” U.S. Const. art. IV, sec. 4.
In every case, the court of appeals held that the claim presented a political question that could not furnish a basis for granting the State relief. See California v. United States, 104 F.3d 1086, 1090-91 (9th Cir.), cert. denied, 522 U.S. 806 (1997); New Jersey v. United States, 91 F.3d 463, 469-70 (3d Cir. 1996); Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996); Chiles v. United States, 69 F.3d 1094, 1097 (11th Cir. 1995); cf. Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997) (finding that Texas “suggests no manageable standards by which a court could decide the type and degree of immigration law enforcement that would suffice to comply with [the] strictures” of the Constitution). . . .
The district court in this case relied upon those decisions, and Texas agrees with them. ROA.997; Texas Panel Br. at 34. It follows that just as Texas could not rely on an asserted “invasion” to obtain affirmative relief against the federal government, it cannot rely on an asserted “invasion” as either a reason to read the Rivers and Harbors Act to permit its conduct or as an (unasserted) affirmative defense against the United States’ claims of statutory violations in this case. As the district court observed, Texas seeks to avoid that conclusion by focusing its argument not on Article IV, but on the “invasion” exception to the State War Clause. But “all Texas’s new argument does is to ask the Court to take the additional step -- beyond the nonjusticiable question of whether the federal government has failed to protect Texas from invasion -- of sanctioning Texas’s assertion of plenary power to declare and respond” to whatever it regards as an invasion, ROA.998 (emphases added), and permitting it to defy federal law. . . .
Texas has not identified a single case in which a federal court has held that a federal constitutional question presents a political question that is reserved to a state governor, much less that the governor may order state officials to violate federal law on that basis. Whatever else the political question doctrine covers, it is not a doctrine that requires the federal judiciary to turn a blind eye to state actions that the federal legislature (through the Rivers and Harbors Act) and the federal executive (through this enforcement action) have determined are improper. . . .
Damnation.
Now you know -- and with that, the loony Fifth Cir. should be. . . embarrassed into simply dismissing Texas's appeal, forthwith.
नमस्ते
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